Citation NR: 9627561
Decision Date: 09/30/96 Archive Date: 10/07/96
DOCKET NO. 89-26 111 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for a disorder
manifested by partial loss of bowel control, secondary to
diabetes mellitus.
2. Entitlement to a total disability evaluation based on
individual unemployability due to a service connected
disability.
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
John J. Crowley, Counsel
INTRODUCTION
The veteran served on active duty from February 6, 1969, to
May 30, 1969.
This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO). In
November 1992, the Board upheld the RO’s denial of the
veteran’s claims. At that time, the issues before the Board
where entitlement to service connection for a partial
amputation of the left foot and for a disorder manifested by
loss of bowel control, both claimed as being secondary to the
veteran's service-connected diabetes mellitus, entitlement to
an increased evaluation for diabetes mellitus, and
entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disabilities. The veteran filed an appeal to the United
States Court of Veteran's Appeals (Court).
In November 1993, the General Counsel for the Department of
Veterans Affairs (General Counsel) and the veteran's attorney
filed a joint motion to vacate the Board's decision, in part,
and to remand this matter for development and readjudication.
The joint motion moved to dismiss the appeal “without
prejudice” with respect to the claim of entitlement to
service connection for a partial amputation of the left foot
as secondary to service-connected diabetes mellitus and with
respect to his claim for entitlement to an increased rating
for diabetes mellitus with peripheral neuropathy and small
vessel peripheral disease, currently evaluated as 40 percent
disabling. The joint motion conceded that the veteran’s
Notices of Disagreement with respect to these claims were
received prior to November 18, 1988. Consequently, the Court
does not have jurisdiction and the Board’s determination with
regard to these claims is final. The Court granted the joint
motion that month, vacating and remanding the case to the
Board.
In April 1994, the Board remanded the case to the RO for
additional development.
REMAND
The joint motion of November 1993 stated that Board would be
“required” to give consideration to any other “symptoms
attributable to the veteran’s service-connected diabetes.”
In the Board’s April 1994 remand, it was requested that the
RO contact the veteran for the purpose of having him identify
the issues he desired to have adjudicated, particularly
whether he desired to pursue the issues of entitlement to
secondary service connection for partial amputation of the
left foot, arteriosclerosis, and residuals of a colostomy,
and entitlement to an increased evaluation for his diabetes
mellitus, which have been referenced in various documents,
including a July 1988 RO personal hearing transcript,
Statements of Accredited Representative in Appealed Case (VA
Form 1-646) dated in August 1989 and January 1992, and an
Informal Presentation from the representative, received in
March 1992. The Board also requested that a series of
medical evaluations be performed to determine the nature,
extent and etiology of the veteran’s disabilities.
In July 1994, the RO contracted the veteran to make the
inquiry requested by the Board. In an August 1994 reply, the
veteran claimed entitlement to service connection for a left
leg below the knee amputation and weakened eyes secondary to
his diabetes. In a June 1995 statement, he claimed
entitlement to service connection for peripheral neuropathy
and loss of his left leg in 1993, 2 inches bellow the knee,
both secondary to his diabetes. The veteran is at present
service-connected for peripheral neuropathy associated with
the evaluation for his diabetes. It must be noted that any
claim of entitlement to service connection for any disability
would be “inextricably intertwined” with the issue of
entitlement to a total disability evaluation based on
individual unemployability due to service connected
disabilities. See Harris v. Derwinski, 1 Vet.App. 180 (1991)
and Parker v. Brown, 7 Vet.App. 116 (1994).
The issue of entitlement to service connection for a “partial
amputation of the left foot, as secondary to service-
connected diabetes” was fully adjudicated by the Board in
November 1992. In that determination, the Board found that
the partial amputation of the veteran’s left foot was shown
to have been necessitated by an embolus that was not related
to his service-connected diabetes mellitus, his sole service-
connected disability.
In the August 1994 evaluation of the veteran’s diabetes, the
examiner stated that the diabetes required left below-knee
amputation. However, the physician made no reference to the
embolus noted by the Board in November 1992. In an
evaluation of the veteran’s eyes that month, the examiner was
of the opinion that diabetes had not caused an impairment of
visual acuity or had a deleterious effect of the veteran’s
vision.
The RO has made an exceptional effort to comply with the
particularly extensive joint motion of November 1993. In
Supplemental Statements of the Case dated April 1995 and June
1995, the RO adjudicated the issues of entitlement to an
increased evaluation for the veteran’s diabetes mellitus with
peripheral neuropathy and small vessel peripheral vascular
disease, evaluated as 40 percent disabling, and entitlement
to service connection for amputation of the left foot (now
more properly referred to as an amputation of the left leg
below the knee), diabetic retinopathy, loss of bladder
control, and partial loss of bowel control, all alleged
secondary to the veteran’s diabetes. The veteran has failed
to file a substantive appeal to these additional
determinations by the RO. Consequently, only those issues
listed in the issue section above are before the Board at
this time. 38 U.S.C.A.§ 7105(a) (West 1991) and 38 C.F.R.
§ 20.202 (1995). Nevertheless, in light of the broad joint
motion, as well as the recent Court determination in Allen v.
Brown, 7 Vet.App. 439 (1995), in order to adjudicate the
issue of entitlement to a total disability evaluation based
on individual unemployability due to service connected
disabilities, the Board must determine if the veteran’s
diabetes has caused or aggravated any of the veteran’s
currently nonservice-connected disabilities. Based on a
review of the most recent medical evaluations, the Board can
not make such a determination. The undersigned believes that
additional information is required to determine the degree of
industrial impairment resulting from the service-connected
disability and to determine if the veteran is unemployable as
the result of this service-connected disability. See Beaty
v. Brown, 6 Vet.App. 532 (1994). The veteran suffers from
several nonservice-connected disabilities, including a back
disability and the residuals of colon cancer. However, the
medical record, at present, does not clearly indicate whether
the veteran is unemployable as the result of either his
service-connected or his nonservice-connected disabilities.
The Board must also note that there is a question of which
veteran’s service organization, if any, represents the
veteran in his appeal to the Board. In the April 1994
remand, it was noted that the Disabled American Veterans
represented the veteran. However, in a June 1996 report of
contact, it was indicated that the veteran
had revoked Disabled American Veterans’ power of attorney.
No written argument from a veteran’s service organization has
been received since the April 1994 Board remand.
Clarification by the veteran will be required.
In light of the foregoing, the Board finds that further
development, as specified below, is warranted. Accordingly,
the case is REMANDED for the following development:
1. The RO should request the veteran to
identify his official representative, if
any. Any reply by the veteran should be
in writing.
2. The RO should request the veteran to
list all of his current disabilities,
both service-connected and non-service-
connected, and the effects that each has
on his ability to function on a day-to-
day basis.
3. The RO should request the veteran to
identify the names, addresses, and
approximate dates of treatment for all
health care providers who may possess
additional records pertinent to claims.
After securing any necessary
authorization from the veteran, the RO
should contact these health care
providers in order to attempt to obtain
copies of those treatment records which
have not been previously secured,
including any recent treatment of the
veteran’s diabetes and all records
regarding treatment for his left leg.
4. After the aforementioned documents
have been obtained, the RO should arrange
for the veteran to undergo a VA social
and industrial survey. The social worker
should comment on the degree of social
and industrial impairment which the
veteran experiences as a result of all of
his disabilities, including all service-
and nonservice-connected disabilities.
The claims folder should be made
available to the social worker prior to
the examination of the veteran.
5. The RO should arrange for a VA
evaluation to determine the etiology of
any disability either caused or
aggravated by the veteran’s diabetes
mellitus with peripheral neuropathy and
small vessel peripheral vascular disease.
The purpose of this evaluation is to
determine if any current disability can
be reasonably associated to the veteran’s
sole service-connected disability. The
claims folder or the pertinent medical
records contained therein must be
reviewed by the examiner in conjunction
with the examination, including the
recent VA evaluations and the VA social
and industrial survey. All necessary
tests should be performed. The examiner
should record pertinent medical
complaints, symptoms, and clinical
findings. The examiner should provide
explicit responses to the following
questions:
(a) What are the objective
manifestations of the diabetes with
peripheral neuropathy and small vessel
peripheral vascular disease? Please note
all limitations of function associated
with this condition.
(b) Is it more likely than not that
diabetes with peripheral neuropathy and
small vessel peripheral vascular disease
caused or aggravated the partial
amputation of the veteran’s left foot?
The examiner is asked to make reference
to VA medical records from December 1986
to March 1987.
(c) Is it more likely than not that
diabetes with peripheral neuropathy and
small vessel peripheral vascular disease
caused or aggravated the succeeding
amputation of the veteran’s left leg
below the knee. The examiner is asked to
make reference to treatment records after
March 1987.
(d) What are the objective
manifestations of any bowel or bladder
disorder? Please note all limitations of
function associated with this condition.
(e) Is it more likely than not that
diabetes with peripheral neuropathy and
small vessel peripheral vascular disease
caused or aggravated any bowel or bladder
disorder? The examiner is asked to make
reference to the veteran’s treatment for
colon cancer.
(f) If the examiner is of the opinion
that any disability cited above was
aggravated by the veteran’s diabetes with
peripheral neuropathy and small vessel
peripheral vascular disease, the examiner
should indicate the degree of disability
associated with that aggravation.
6. The RO should review the medical report
above to determine if it meets the
requirements of paragraph 5 and the
requirements of the November 1993 joint
motion. If not, the report should be
returned as inadequate for rating purposes.
38 C.F.R. § 4.2 (1995).
7. Thereafter, the case should be
reviewed by the RO. If the foregoing
determinations do not result in a grant
of a 100 percent schedular rating, the
claim for a 100 percent rating based on
unemployability due to all of his
service-connected disabilities should be
adjudicated with consideration of
38 C.F.R. §§ 3.340, 3.341, and 4.16
(1995). The RO should also expressly
address the issues of entitlement to
secondary service connection with
reference to 38 C.F.R. § 3.310(a) (West
1991) and the case of Allen v. Brown, 7
Vet.App. 439 (1995) and provide
appropriate notice to the veteran of a
determination in this regard. The RO is
also asked to specifically determine if
separate evaluations of the veteran’s
service-connected diabetes with
peripheral neuropathy and small vessel
peripheral vascular disease is
appropriate. It is important to note
that the issue of entitlement to service
connection for no other disability other
than a partial loss of bowel control will
be formally before the Board and will not
be address by the Board unless the
veteran files a notice of disagreement
and completes all procedural steps
necessary to appeal a claim to the Board
in accordance with 38 U.S.C.A. § 7105
(West 1991).
If the benefits sought on appeal are not granted to the
veteran's satisfaction, the RO should issue a supplemental
statement of the case, and he and his representative, if any,
should be provided an opportunity to respond. The case
should then be returned to the Board for further appellate
consideration, if otherwise in order.
RICHARD B. STANDEFER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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